FAULT AS A PRE-REQUISITE CONSTITUTIVE ELEMENT FOR DELICTUAL LIABILITY: 1. Introduction: According to Neethling a delict is an act of a person which in a wrongful and culpable (fault) way causes harm to another person. As can be construed from the definition of a delict culpableness or fault is one of the elements, which must be present for someone to have a successful delictual claim.
Hence, this paper is mainly aimed at providing an in-depth discussion on fault as a pre-requisite for a successful delictual claim. 2. Definition of fault (culpa) and its two main forms:
According to jurist, such as De Wet and Swanepoel, the element of fault is defined as the inexcusable nature with which a person acts. In addition, De Wet goes on to outline that fault is “something” for which a person is blamed and, therefore, not the object of blame or the blame itself. Further, in practice, two main forms of fault are recognised, namely, intention (dolus) and negligence (culpa).
Neethling submits that, this commonly refers to the legal blameworthiness or the inexcusable state of mind or conduct of someone who acted wrongfully.
Thus, fault can only be present if a person has acted wrongfully. 3. Factors that should be present for someone to have fault [requirements of the element of fault]: 3. 1 Accountability (culpae capax): Before one establishes whether a defendant’s wrongful conduct is blameworthy, it must be ascertained whether he/she has the necessary capacity to be held accountable or liable, for his/her conduct. Thus, implying that such a person’s mental ability must be such that the intent or negligence may be assigned to him/her.
Furthermore, according to Neethling a person is responsible if he/she has the necessary mental ability to distinguish between right and wrong and if he/she can also act in accordance with such appreciation. Simply, meaning that at the time of the commission of the act the said person must have had the required mental ability, thus if at the time of the commission of the act the person lacks accountability, there can be no fault on his/her part. As according to Neethling, accountability is seen as the basis of fault. 3. 1. Factors leading to culpae incapax: Nonetheless, there are instances, in our law, where a person may lack the necessary mental capacity, such as (a) youthfulness, (b) mental disease or illness, (c) intoxication or a similar condition induced by a drug and (d) anger due to provocation. (a) Youth: According to our law, a child who is between the ages of 0-7 years old is always regarded as lacking capacity. In such cases, the actual mental ability of the child is irrelevant and there is irrebuttable presumption that he/she is not accountable.
This point was reflected in the matter of Weber v Santam Versekeringsmaatskappy Bpk; where a 7 year old boy, whilst playing in the sand in front of a block of flats, was ran over by a motorist who was reversing his vehicle from a parked position. The court a quo found contributory negligence on the child’s part and reduced the amount claim by 40%. However, on appeal the Appellate Division concluded that the boy had been culpa incapax (lacking capacity) and should thus succeed for the full amount of his claim.
Further, there in a rebuttable presumption that a child over the age of 7 and under the age of 14 lacks accountability, meaning that it is assumed that he/she lacks capacity until proved otherwise with evidence. Thus, inferring that once a child has completed his/her 7th year, he/she may be accountable and liable in delict if all the requirements for such liability are met. As in Jones v Santam Bpk; where the plaintiff claimed damages on behalf of his 9 year old daughter for injuries sustained as a result of being knocked down by a motor vehicle insured by the defendant.
In this case the court ruled that the child had been contributory negligent, as she without warning moved into the road, in the face of the oncoming vehicle. (b) Mental disease or illness: Neethling argues that, where as a result of mental disease or illness, a person cannot at a particular moment differentiate between right or wrong or where he/she is able to make such a distinction but cannot act in accordance with his appreciation of the distinction, he/she cannot be held accountable. (c) Intoxication:
According to the case of S v Chretien, persons who are under the influence of intoxicating alcohol or drugs may also be lacking capacity. Nonetheless, Neethling states that the mere consumption of liquor or use of drugs may in a given situation be a negligent act for which the defendant may be held responsible. (d) Provocation: A person may be deemed to lack accountability and will not be blamed for his/her conduct, if he/she was provoked in such a manner that he/she lost his/her temper and became passionately or fervently angry. However, in our law, provocation is often regarded as a justification. . 2 Intention (dolus): According to Burchell, a person is at fault where he intentionally commits unlawful conduct, while knowing it to be unlawful. Neethling agrees with this point, by maintaining that an accountable person acts intentionally if he/she directs his/her will at a result which he/she causes while conscious of the wrongfulness of his/her conduct. Therefore, meaning that a for someone to be at fault he or she must not only have the intention to achieve a particular result but must also have the knowledge that such a result would be unlawful or wrongful.
Consequently, it is evident from the above that for someone to be said to have dolus, such a person meet the 2 elements of intention, namely, (a) direction of his/her will and (b) consciousness or knowledge of the wrongfulness. 3. 2. 1 Two elements of intent: (a) Direction of the will: Neethling affirms that this element refers to the direction of the transgressor’s will to a result which was either his/her main purpose or aim or one which he foresaw might follow from his/her conduct. This can take 3 forms: (i) Direct intention (dolus directus):
This intention in its ordinary grammatical sense, simply, means that the defendant meant to do the prohibited act or to bring about the delictual consequence. In addition, according to Neethling it is irrelevant whether the defendant is certain that the consequence would result or whether it only appears to him/her to be probable. (ii) Indirect intention (dolus indirectus): This is when the perpetrator directly intends one result of his/her conduct, while being aware or having knowledge that another result will unavoidably or inevitably also occur.
Consequently, the causing of the second result is accompanied by indirect intent. Therefore, in our law, the offender is said to have intent in respect of the second result which he/she has not desired or which was not his/her primary aim, according to Neethling. As in R v Kewelram; the accused set fire to certain stock which was in a store. His objective was the destruction of the stock, which was his direct intent, in order to obtain the insurance money. However, he foresaw the destruction of the store as a substantially certain, or inevitable, consequence of the burning of the stock, which was ruled as his indirect intent. iii) Dolus eventualis: In Rudolph v Minister of Safety and Security, the court stated that dolus eventualis is when the defendant, while not wanting to cause a particular result, foresees the possibility that he/she may cause the result and reconciles him/herself to this fact; that is, he/she nevertheless performs the act which brings about the consequence in question. Moreover, the facts of R v Jolly provides a clear exemplification of the meaning of dolus eventualis. In this case, the appellants had unlawfully and deliberately derailed a train.
However, no one was seriously injured in the derailment and it was argued, on behalf of the appellants, that there was no desire to injure anyone, especially since the appellants had chosen a spot where the train was moving slowly up a rising gradient with banks on either side of the railway line. Nevertheless, Innes CJ stated that: “Now the derailment of a train, even upon a slightly rising grade, must be attended by terrible possibilities of danger to those travelling upon it.
Jolly recognised this, for he said in his evidence that he contemplated risk of life. But he and his associates were content that risk in the interest of their larger design”. Therefore, the court held that they intended to kill. Furthermore, it is important to note that confusion between dolus eventualis and gross negligence may occur. Reason being, as Neethling puts it, that this form of intent may sometimes be defined slightly different, by stating that the wrongdoer foresees a consequence but recklessly carries on with his/her conduct.
Additionally, the distinction between these two concepts are clarified as follows: in the case of dolus eventualis, the question is whether the defendant ‘actually subjectively’ foresaw the possibility of the consequence. For example, X wants through darts at the dartboard. Y is standing next to the dartboard when X takes aim. X actually foresees the possibility that he that his aim might miss the dartboard and might hit Y with serious consequences. Nevertheless, X decides to proceed (to through the dart at the dartboard) and the dart misses the dartboard and hits Y, in the eye causing Y to lose one eye.
In such a case, the conclusion would be that X intentionally threw the dart at Y, causing Y to lose his eye, even though X did not desire this consequence or foresee it as a necessary consequence of his conduct. Reason being that the mere fact that X subjectively foresaw the possibility that he might hit Y is sufficient for concluding that he acted intentionally. While in the case of negligence, the question is whether the consequence, ‘objectively’ seen, was reasonable foreseeable.
Thus, if X originally foresaw the possibility that he might hit Y but later for some reason came to the conclusion that this would not happen, there will not be dolus eventualis on his part. In such a case, a court would rule that the conscious negligence may be present, that is, that the defendant subjectively foresees the possibility of harm in the circumstances where such harm is also reasonable foreseeable but does not reconcile him/herself to the possibility of this happening. Moreover, it is important to consider that a there is a further division of intent into definite (dolus determinatus) and indefinite intent (dolus indeterminatus).
According to Neethling, dolus determinatus refers to a situation where a wrongdoer’s will is directed at a result which he causes while he/she has a specific person or object in mind. On the other hand, dolus indeterminatus refers to a scenario where the wrongdoer’s will is directed at the result which he causes while he has no specific person or object in mind. For example, where a person throws a bomb into a crowd or derails a train, the fact that he has no particular intention to kill a particular individual in the crowd or upon the train does not mean that he lacks intention, since he knows or foresees that someone will die. b) Consciousness or knowledge of wrongfulness: According to our law, it is not sufficient that a defendant had merely directed his will at causing a particular result. Such a person must also know (or be aware) or at least foresee that his/her conduct is wrongful or unlawful. However, Neethling professes that, in certain cases a mistake or error with regard to any matter which has bearing on the wrongfulness of the actor’s conduct, will exclude intent on his/her part. 3. 2. 2 Motive and mistake concerning the causal chain of events: a) Motive: Neethling argues that motive indicates the reason for someone’s conduct and must not be confused with intent. Thus, while intent implies the willed conduct which the wrongdoer knows is unlawful; motive, conversely, refers to the reason or motivation why a person acts in a particular way, that is, the object he wishes to achieve, his desire, or the facts behind the formation of his will. One can, therefore, logically, argue that motive precedes the formation of the intention to engage in conduct.
Moreover, Neethling also explains that motive may serve as proof of consciousness of wrongfulness. As it may be accepted that a bad motive ‘usually’ indicates knowledge of wrongfulness, whereas, a good motive usually indicates the opposite. (b) Mistake concerning the causal chain of events: The issue here is whether intent is present where the defendant causes a result in a manner different from that foreseen by him/her. Hence, a distinction must be made between a material and an immaterial deviation from the planned or foreseen causal nexus.
In the case of a material deviation intention is absent, this point was argued in S v Goosen ; where X, Y and three other persons participated in a robbery. X drove the robber’s vehicle. X did foresee that Y, who had a loaded gun, could shoot and kill their victim. During the robbery Y jumped out of the way of the car driven by the victim and this caused a shot to be discharged involuntarily from the gun he held. The shot hit and killed the victim. The court held that causing death by intentional conduct differs markedly or significantly from causing death by unforeseen conduct.
Thus, the court took the viewpoint that there was a material difference between the actual causal chain of events and that foreseen by X. Consequently, X was acquitted of murder since his intention did not cover the manner in which the death was caused. Nevertheless, intent is assumed to be present where the deviation is not significantly different from the foreseen causal chain of events. Case in point, S v Masilela where the two accused throttled the deceased and hit him over the head with the intent to kill him and while believing him to be dead; they threw him onto a bed and set fire to the house.
However, a post-mortem examination revealed that the deceased did not die of strangulation or the blow to the head but because of the poisonous fumes of the fire. The court ruled that there was intent to murder, reason being, that the court took the viewpoint that the two perpetrators intended and caused an unlawful consequence and that it would be absurd to accept that they did not intentionally kill the deceased simply because the causal chain of events between their conduct and the result is different from that foreseen by them. . 3 Negligence: As earlier pointed out for a person to found liable for a delictual claim, such person must have intent. However, this is not conclusive as such a person might also be held liable for being negligent under the circumstances. According to Neethling, in cases of negligence a person is blamed for an attitude or conduct of inattentiveness, thoughtless or incaution because, by giving inadequate attention to his/her actions, he/she failed to adhere to the standard of proof legally required of him/her.
Furthermore, case law dictates that the test courts adopt to prove negligence is the application of the reasonable person (bonus paterfamilias). Implying, that a defendant is negligent if the reasonable person in his/her position would have acted differently and according to the courts the reasonable person would have acted differently if the unlawful causing of damage was reasonable foreseeable and preventable.
Case in point, Kruger v Coetzee, where the plaintiff’s motor vehicle was damaged in a collision with one of the defendant’s horses, which had strayed from a camp on the defendant’s property through an open gate on to the public road along which the plaintiff was travelling. The gate had been put in the fence by the local divisional council to afford access through the defendant’s property to a construction site and it frequently occurred that the drivers of vehicles moving to and from the building operations left the gate open.
The defendant had lodged complaints about this with both the divisional council and the contractors on the construction site. Despite this, he continued to keep his horses in the camp. The defendant based her claim on the defendant’s alleged negligence, firstly, in that he allowed his horses to stay on the public way unattended and, secondly, in that the gate had remained open with the effect that he was unable to exercise proper control over his animals.
Court held that the plaintiff had not succeeded in proving negligence on the defendant’s part and consequently her claim was dismissed. Reason was that Holmes JA argued that for the purposes of liability negligence arises if (a) a reasonable person in the defendant’s position (i) would foresee the reasonable possibility of his/her conduct injuring another in his/her person or property and causing him/her patrimonial loss; and (ii) would take reasonable steps to guard against such occurrence; and (b) the efendant failed to take such steps. In the present case, the defendant did take reasonable steps as he twice went to the Council and complained that their employees were leaving the gate open and he also went to those in authority at the tunnel and made the same complaints. 3. 3. 1 Comparison between negligence and intention: With reference to Van der Merwe and Olivier’s definition of negligence it is evident that negligence may only exist in respect of a result if the defendant has not ‘intentionally’ caused that result.
Consequently, this implies that intention and negligence are equally exclusive concepts in the sense that one cannot be present when the other exists. Reason being that in the case of intent the law blames the defendant because he/she knowingly acted unlawfully, whereas, in the case of negligence the defendant is blamed because his/her conduct differed from that of a reasonable person when he/she should have known better.
Thus, in the case of intent the defendant is aware of the unlawfulness of his/her conduct, while in the case of negligence he/she should have been aware thereof. In addition, logically speaking, because a person cannot be aware and unaware of the same fact, intention and negligence cannot overlap. Contrary to the above, there are decisions that suggest that if intent is present, negligence is included in the intent. In S v Ngubane the court ruled that, for the purposes of criminal law, intent and negligence may be present simultaneously.
In this case, the court simply argued that the intentionally causing of harm to another person is contrary to the standard of care which a reasonable person would have exercised and that negligence is thus simultaneously present. 3. 3. 2 Who is the ‘reasonable person’ (bonus paterfamilias): According to Neethling, the reasonable person is merely a fictitious person, a concept created by the law to have a workable objective norm for conduct in society.
He goes on to emphasise that the reasonable person is not an exceptionally gifted, careful or developed person; neither is he underdeveloped, nor someone who recklessly takes chances or who has no caution. As authority to the above, in Herschel v Mrupe the court stated that: “The concept of the bonus paterfamilias is not that of a timorous faintheart always in trepidation lest he or others suffer some injury; on the contrary he ventures out into the world, engages in affairs, and takes reasonable chances. He takes reasonable precautions to protect his person and property and expects others to do likewise”.
Furthermore, it must be emphasised that the reasonable person serves as the legal personification of those qualities which the community expects from its members in their daily contact with one another. This assumption was better explained by Joubert JA, in Weber v Santam, where the learned judged explained that “In my opinion it serves no purpose to ascribe various anthromorphic characteristics to the diligens paterfamilias, because we are not dealing with a physical person, but only with the name of an abstract, objective criterion.
We are furthermore not concerned with what the care of a legion of reasonable person types would have been, such as a reasonable uneducated person, reasonable illiterate person, a reasonable skilled labourer, a reasonable unskilled labourer, a reasonable adult or a reasonable child. There is only one abstract, objective criterion, and that is the Court’s judgement of what is reasonable, because the court places itself in the position of the diligens paterfamilias.
Additionally, what we can deduce from this is that the reasonable person has certain minimum knowledge and mental capacity which enables him/her to appreciate the dangerous potential of actions. In general, according to Neethling the law makes no provision for the fact that a defendant may be stupid, illiterate, inattentive, intellectually retarded or mentally unstable; as the courts deem that everyone is required conform to the objective standard of the reasonable person.
However, when the defendant is a child or an expert the court would not strictly follow the above principles, for example, in the case of an expert the courts would apply the test of the “reasonable expert”. Case in point, Durr v ABSA Bank Ltd, where the plaintiff sought to recover from the defendants R595 000 which she and other members of her family had invested in the debentures and the preference shares issued by the H&I companies. These investment opportunities had been brought to her attention and strongly recommended by the second defendant, Stuart, the regional manager of the first defendant, ABSA, broking division.
Plaintiff contended that owing to Stuart’s negligent failure to exercise the degree of care and skill which she had been entitled to expect of someone in his position and for failure the first defendant should be held vicariously liable, as she had lost her investments when H&I was liquidated. The court a quo ruled in favour of the defendant’s. However, the Supreme Court of Appeal held that Stuart had in fact acted negligently in recommending the investments. Thus, the defendant was held vicariously liable for the losses.
Reason for the Supreme Court of Appeal’s judgement was that the court argued that with regard to the negligence test for experts the standard of care expected of an expert is a specific field, is the general level of skill and diligence possessed and exercised at the time by members of the branch of the profession to which the particular practitioner (or expert) in question belongs. 3. 3. 3 Concepts of foreseeability and preventability of damages and their application:
The test for negligence rests on two legs, that is, (a) the reasonable foreseeability and (b) the reasonable preventability. (a) Foreseeability: According to Neethling two varying views exist about the nature of the foreseeability test. (i) The abstract (or absolute) approach: According to this approach the question of whether someone acted negligently must be answered by determining whether harm to others was in general reasonable foreseeable; in other words, the question of whether his/her conduct in general created an unreasonable risk of harm to others must be asked.
This approach makes it clear that it is not a requirement for negligence that the ‘degree’ of damage or a particular result that actually occurred should have been reasonably foreseeable; it serves if damage in general was reasonably foreseeable. Thus, the question of whether the defendant is liable for a specific result is answered with reference to legal causation rather that by inquiring whether the defendant was negligent with regard to that specific result. (ii) The concrete (or relative) approach:
This approach is based on the foundation that a person’s conduct may only be described as negligent in respect of a specific result(s), therefore, Neethling affirms that it is a pre-requisite for negligence that happening of a particular result must be reasonably foreseeable. Basically meaning that a defendant is only negligent with reference to a specific result if that result, and not merely damage in general, was foreseeable (b) Preventability: This test relies solely on the question whether the reasonable person would have taken precautionary steps to prevent the damage from occurring.
Simply put, the question is whether, in a case of reasonable foreseeable damage, the defendant took acceptable, reasonable steps to prevent the materialisation of the damage. Additionally, Neethling states that the mere fact that foreseeable damage emerged does not necessarily mean that steps initially taken to prevent the damage were unreasonable. 3. 3. 4 Negligence deducted from surrounding circumstances: According to Neethling, it is a well-known principle of our law that all relevant circumstances of a case must be considered as a whole when deciding whether a defendant’s conduct was negligent.
In Cape Town Municipality v Butters the court argued that “It needs to be emphasised…that in considering issues of negligence what is, or what is not, reasonable foreseeable and what steps, if any, ought to be taken by the reasonable person to avert such foreseeable harm must always depend upon the particular circumstances of each case, that no hard and fast rule can be laid down and that in general it is futile to seek guidance from the facts and results of other cases”. . 3. 5 Proof of negligence: In any delictual claim, the onus or ‘responsibility’ in always on the plaintiff to prove on a preponderance of probabilities that the defendant was negligent, as in Ntsala v Mutual & Federal Insurance Co Ltd the court stated that “…the onus rests throughout on the plaintiff to prove negligence on the part of the defendant.
Once the plaintiff proves an occurrence giving rise to an inference of negligence on the part of the defendant, the latter must provide evidence to the contrary: he must tell the remainder of the story, or take the risk that judgement be given against him”. Nonetheless, where there is a statutory presumption of negligence, the onus or ‘responsibility’ rests on the defendant to rebut such presumption of negligence in order to avoid liability.
An example of such a provision, Section 34 (1) of the National Veld and Forest Fire Act which creates a presumption of negligence in cases of veld fires. Moreover, according to Neethling note should also be taken of the maxim res ipsa loquitur, which refers to a situation where the facts of the matter are such as to give rise to an implication of negligent conduct and finds application where the only known facts, relating to negligence, consist of the occurrence itself.
However, Neethling emphasis that this only creates a presumption of negligence, but that the current legal position is that there is no shift in the onus of proof in such cases and that there is not even a prima facie case in favour of the plaintiff, as the phrase is merely an argument on the likelihood that the plaintiff, who may have little evidence at his/her disposal, may use in order to convince the court that the defendant acted negligently. 4. Contributory fault: Fault, in general, refers to the defendant’s conduct, whereas, contributory fault refers to the plaintiff’s conduct.
The main significance of contributory fault is to limit the degree of the defendant’s liability. Further, contributory fault is governed and regulated by Section 1 (1) (a), (b) and (3) of the Apportionment of Damages Act. What can be deduced from these sub-sections is that where the conduct of the plaintiff has contributed to the defendant’s initial fault, the defendant will still be found to be at fault. However, since the plaintiff’s conduct was a contributing factor to the defendant’s fault, the amount of damages would be reduced.
Case in point, Jones v Santam where the court ruled that the plaintiff have been contributory negligent as she had without prior warning moved into the road in the face of the oncoming vehicle and, as a result, the court reduced the amount of damages by 50%, in terms of Section 1 (2) of the Apportionment of Damages Act. Nevertheless, it is within the discretion of the courts to decide whether the conduct of a particular plaintiff can be regarded as contributory fault. As in Botes v Van Denventer, where a lorry, driven by a servant of the defendant, had in the dark collided with 3 horses belonging to the plaintiff.
Collision took place on an unfenced public road running through a paddock of the plaintiff and the plaintiff claimed full value of the 3 horses as they had to be destroyed. Defendant alleged that the plaintiff had been contributory negligent in allowing his valuable horses to run loose in the vicinity of the open road and in failing to take precautionary measures against an occurrence like the one at hand, such as stabling the horses at night, erecting warning signs at night, or fencing the public road.
The court ruled that the defendant was fully liable for the damage caused and that the plaintiff’s failure to take preventative steps did not signify any contributory negligence on his part, as the reasonable man would not have taken the steps as suggested by reason of the disadvantages, costs and futility of such measures under the circumstances. Furthermore, where the defendant raises the ‘defence’ of contributory negligence on the part of the plaintiff, the defendant has to prove that such a defence on a balance of probabilities. . Conclusion: To conclude, this paper expressly comprehends that for any plaintiff to succeed in his/her delictual claim he/she must prove that the defendant was at fault and In short, fault means that a person can be blamed for his conduct. Additionally, fault can take two forms, namely, intention and negligence. However, before a person can be blamed for his conduct, one has to establish whether he can be held accountable. In addition, a person acts intentionally if he purposely does something he knows to be wrong.
Negligence, on the other hand, occurs when a person unintentionally commits a wrongful deed. In this regard, the reasonable man test is used which involves the answering of two questions: (1) would the reasonable man have foreseen his conduct causing damage? (2) If so, could any steps have been taken to avoid the damage? A person is negligent if the answer to both questions is yes. Lastly, this paper also disclosed that in some cases a plaintiff’s conduct may also be deemed as contributory fault which would lead to a reduction in the amount of damages claimed. 6.
References: 1. Burchell, J. , & Milton, J. (1997). Principles of Criminal Law. (2nd ed. ). Juta: Cape Town. 2. Neethling, J. , et als. (2010). Law of Delict. (6th ed. ). LexisNexis: Durban. 3. Neethling, J. , et als. (2007). Case Book on the Law of Delict. (4th ed. ). Juta: Cape Town. 4. Legislation: -The Apportionment of Damages Act 34 of 1956. – The National Veld and Forest Fire Act 101 of 1998. 5. Relevant case law. ——————————————– [ 1 ]. Neethling J. , et als. Law of Delict 6th ed. [ 2 ]. De Wet and Swanepoel Strafreg 1985. 3 ]. Meaning determining whether there is fault on his/her part. [ 4 ]. Meaning that he/she is not accountable (culpae incapax). [ 5 ]. Referring to an infant or an infans. [ 6 ]. 1983 (1) SA 381 (A). [ 7 ]. 1965 (2) SA 542 (A). [ 8 ]. Note that although both the cases of Weber v Santam Versekeringsmaatskappy and Jones v Santam Bpk deals with the issue of contributory negligence, reference to them is given because to show that in some instances the court will find that a child can or cannot be held accountable. [ 9 ]. 1981 (1) SA 1097 (A). [ 10 ].
For example, where a driver of a train uses drugs before embarking to his next destination and the drugs only takes full effect after he has started his trip, and then he causes damage while in a state where he is no longer able to distinguish between right or wrong or between safe and unsafe conduct or to act in accordance with an appreciation of such distinction, he may nevertheless be liable. Reason for this being that the use of the drugs may be seen as a negligent act performed at a time when the driver was accountable. [ 11 ]. A defence for someone’s wrongful or unlawful conduct. 12 ]. Burchell J. & John M. Principles of Criminal Law. 2nd ed. [ 13 ]. This point was also emphasised in Dantex Investment Holdings (Pty) Ltd v Brenner 1989 (1) SA 396. [ 14 ]. For example, where A decides to stab and kill B in order to take B’s expensive watch. In this instance, the execution of this plan is accompanied by direct intent because it is A’s aspiration or plan that B should die. [ 15 ]. 1922 AD 213. [ 16 ]. 2009 (5) SA 94 (SCA). [ 17 ]. 1923 AD 176. [ 18 ]. Jolly’s real intent here was to obstruct the railway traffic. [ 19 ].
Note, Neethling argues that the use of the word “reckless” in this regard should, however, be avoided because recklessness may also refer to a serious degree of negligence. [ 20 ]. Dolus eventualis and (gross) negligence. [ 21 ]. Application of the reasonable person test. [ 22 ]. For example, if X is a professional dart thrower who has won numerous international championships, decides to throw a dart at the dartboard, while Y is standing next to it, initially, foresees that he might hit Y and cause injury to Y but satisfies himself by the fact that he is an expert in darts that he would not hit Y and consequently cause injury to Y. [ 23 ].
This is because in such a case the defendant did not act as would have been expected of any reasonable person in his position. Note that a further discussion on the ‘reasonable person’ would be dealt with separately at a later stage. [ 24 ]. Often argued that this form of intent may be present in cases of direct intent, indirect intent and dolus eventualis. [ 25 ]. For example, where X takes a motor vehicle belonging to Y while erroneously or mistakenly thinking that Y has given consent, he does not take the car intentionally because his mistake (of thinking that Y has given consent) excludes knowledge of wrongfulness on his/her part.
In other words, X honestly but wrongly believes that he/she is acting lawfully because of the supposed consent from Y. [ 26 ]. 1989 (4) SA 1013 (A). [ 27 ]. 1968 (2) SA 558 (A). [ 28 ]. This goes to show that a significant or marked deviation can only exist where the actual causal chain is so different from the foreseen one that the former, i. e. the actual causal chain, cannot reasonably be regarded as falling within the wrongdoer’s own perception. [ 29 ]. 1966 (1) SA 428 (A). [ 30 ].
Requirement (a) (ii) is sometimes overlooked by out courts. [ 31 ]. Van der Merwe N. J. & Olivier P. J. J. Die onregmatige Daad in die Suid-Afrikaanse Reg 1989. [ 32 ]. 1985 (3) SA 677 (A). [ 33 ]. Although it must be accepted that the law of delict will also be influenced by this decision, according to Neethling. [ 34 ]. 1954 (3) SA 464 (A). [ 35 ]. For example, the reasonable person knows that there are inherent dangers involved in the use of firearms, explosives, poison, motor vehicles, electricity, sports equipment, etc. 36 ]. 1997 (3) SA 448 (SCA). [ 37 ]. This was also reflected in Van Wyk v Lewis 1924 AD 438. [ 38 ]. In Herschel v Mrupe, Centilivres JA illustrated this with an example by stating that “if through my negligent driving of a motor car I crash into another car containing china and that china is smashed I cannot be heard to say that I am liable for the loss of china because I was unaware of the presence of the china”. [ 39 ]. However, it is important to note that this approach is not generally accepted by our courts. [ 40 ].
Van der Walt and Midgley identifies four factors that are particularly relevant to the preventability leg of the test of negligence that are taken into account in case law. Firstly, the nature and extent of the risk inherent in the defendants conduct, secondly, the seriousness of the damage if the risk materialises and damage follows, thirdly, the relative importance and object of the defendant’s conduct and, fourthly, the cost and difficulty of taking precautionary measures. See also Kruger v Coetzee. [ 41 ]. 1996 (1) SA 473 (C). [ 42 ]. 1996 (2) SA 184 (T). [ 43 ].
If a person who brings civil proceedings proves that he or she suffered loss from a veldfire which: (a) the defendant caused; or (b) started on or spread from land owned by the defendant, the defendant is presumed to have been negligent in relation to the veldfire until the contrary is proved, unless the defendant is a member of a FPA in the area where the fire occurred. [ 44 ]. 101 of 1998. [ 45 ]. The facts speak for themselves. [ 46 ]. This phrase may thus be applied where, for example, a motor car suddenly swerves to the wrong side of the road or where objects fall from a building.
Because these events do no usually occur without accompanying negligence. [ 47 ]. “Where any person suffers damage which is caused partly by his own fault and partly by the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the claimant but the damages recoverable in respect thereof shall be reduced by the court to such extent as the court may deem just and equitable having regard to the degree in which the claimant was at fault in relation to the damage. ” [ 48 ]. Damage shall for the purpose of paragraph (a) be regarded as having been caused by a person’s fault notwithstanding the fact that another person had an opportunity of avoiding the consequences thereof and negligently failed to do so. ” [ 49 ]. “For the purposes of this section “fault” includes any act or omission which would, but for the provisions of this section, have given rise to the defence of contributory negligence. ” [ 50 ]. 34 of 1956. [ 51 ]. For the facts of this case refer to the above discussion on the factors leading to culpae incapax. 52 ]. “Where in any case to which the provisions of subsection (1) apply, one of the persons at fault avoids liability to any claimant by pleading and proving that the time within which proceedings should have been instituted or notice should have been given in connection with such proceedings in terms of any law, has been exceeded, such person shall not by virtue of the provisions of the said subsection, be entitled to recover damages from that claimant. ” [ 53 ]. 1966 (3) SA 182 (A).
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